Richard Epstein and John Yoo discuss the last two weeks of Supreme Court rulings covering challenges to Second, Fourteenth, and Sixteenth Amendments. They also preview the upcoming challenge to Chevron Deference and dive into disputes among the originalist thinkers on the court. Finally, they weigh in on criticisms of recent disclosures by Justice Thomas and future plans for a future Trump Administration from groups like Project 2025.
Transcript
Richard Epstein: Mr. Church, take us away.
Tom Church: Welcome back to Law Talk at the Hoover Institution. I'm your Law Talk guest host Tom Church. Still doing my best Troy Senik impersonation. We're coming at you from the faculty lounge of the Epstein and U Law School where I'm joined by two of the legalist of eagles, starting with Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Laurence A. Tisch professor of law at NYU, and he's a senior lecturer at the University of Chicago. And of course I'm joined by John Yoo across the bay. John is a visiting fellow at the Hoover Institution. He's the Emanuel Heller professor of law at the University of California at Berkeley, and he's a former Deputy Assistant Attorney General in the George W. Bush administration. Richard, John, how are you? You ready for a little Supreme Court roundup?
Richard Epstein: Supremely ready?
John Yoo: It's like a, what's a half roundup?
Tom Church: A half roundup?
John Yoo: Quarter roundup because they're not done.
Tom Church: All right. A Supreme Court round around, let's start with the bump stock case so we can talk some guns. This is Garland versus Cargill. The Supreme Court has ruled that bump stocks are not machine guns. This is an interesting case, YouTube because I think it plays with the ideological expectations a little bit. This ruling went into place after a major gun shooting in Las Vegas under President Trump, under then President Trump. And so I find it interesting because it's the conservatives that struck this down. So take me through this here for a little bit. Is this a really clear cut case where the Supreme Court has decided here is what a machine gun is, this bump stock thing doesn't fit into it and so end of story or is there a little bit more to the question? John, can I maybe start over with you?
John Yoo: Sure. I think the reason why its outcome does not run along what you would've thought beforehand. It'd be thought that guns and getting to use them is some kind of substantive objective of the Roberts court, which is what you might think if you read the press, that the case is really about is this broader fight. We might learn the end result of it next week, which is how much discretion do executive branch agencies have to interpret statutes when they make regulations. This is really a case about could the court, I'm sorry, could the government say in a statute which talks about banning automatic weapons and I think it defines automatic weapons, which as a weapon which produces more than one shot per action of the trigger. And so could the government say, well this bump stock, which you pull the trigger once and then it shoots a bullet, but then it uses the motion of the gun to speed up the time in between each trigger pull.
Could that be called an automatic weapon? And so the government wanted to use this, it was called Chevron deference, this power to interpret statutes and demand that the courts defer to their interpretation statutes to try to get away with saying that that bump stock is actually an automatic weapon. And so the court of Justice Thomas writing says, no, you can't do that. The agencies can't interpret a statute so far that it seems to conflict with the plain meaning of the text. Now the interesting thing is we're waiting this upcoming week, there are these cases involving the Chevron doctrine. There's two cases called Lopez-Brite, and then I like the name of the other case, the Relentless.
Richard Epstein: Relentless.
John Yoo: Yes, the Relentless, they should have just called it Richard Epstein, the USS Richard Epstein.
Richard Epstein: That's right.
John Yoo: Is supposed to be released this week. And the interesting thing is if you read this bump stock case, you see no Chevron appear. So if you're reading the tea leaves, you think probably that the court is going to throw Chevron out next week. And here's one, my last point is the people who support Chevron, which are generally progressives because they like to give the administrative state the broadest powers they can. They're predicting that the heavens are going to fall because it's too hard for courts to review interpretations of statute and agency regulations on their own. But here, this bump stock case is a very case showing what the post-Chevron world is going to look like. And it's not the disaster, it just means that Congress has to be clear and when Congress isn't clear, the agencies don't have the right to basically rewrite the law to achieve their policy objectives for which no one elected them.
Tom Church: Richard, if Chevron gets thrown out, does that mean that everything grinds to a halt and we're stuck with more litigation or just fewer things are going to happen at the federal level?
Richard Epstein: Nobody really knows because the first question you have to ask is what's going to happen to the way in which you draft regulations given that that Chevron is now no longer on the books? And one of the interesting things about the bump stock case is that it was well understood at the time that the events took place that a legislative fix was perfectly sensible. And so the question is why if this thing is sensible that it never happen? And it's because the administration, the Trump administration ran this marathon event in which they got huge amounts of stuff through a notice and common proceeding. And so what they did is they issued the regulation and then what happened is they never bothered to change the statute. And so it's going to happen in terms of the on-the-ground behavior, nobody will try that particular strategy again, no matter what side you're on, if you know that you could get the legislation through, you're certainly not going to go on a rink-a-ma-dink schedule on the other way around.
The other question is, what do we mean when we start doing this? This has happened in a bunch of other cases in the Bostock case for example, on the question of what is covered, same-sex marriages, transgender relationships under Title IX, Title VII of the Civil Rights Act, and the first time this thing came up, it oozed in Jeff deference. There was all sorts of things in which you said, well, it may be a free case and it may be an improbable situation and so forth, but under Chevron it's fine. So what happens is the case now gets re-heard and it's clear that Chevron no longer applies. And so what happens is all of a sudden the same people who thought that the thing was so obscure that Chevron applied, now take the position. It's so clear that we don't need Chevron in order to get that particular reduce it.
And so it's going to happen is people are going to claim that the statutes are perfectly clear and then they're going to give perfectly inconsistent rationales for the way in which they start to go. On this one, I actually predicted that it might well come out the other way and I did so on the following rough theory, which is forget about the wording of the text. If you ask yourself to quote Barry's Goldwater, is there a dime's worth of difference between a machine gun and a bump stop? The answer to that question might appear very narrow because it may be a 10% difference in the speed at exit. And so the theory is if you're going to regulate one, you've got to be able to regulate the other. And so you're going to basically decide with the descent, what I think came out, and I think it was probably the result, if you look at the text, the point that John made, one shot many bullets, one shot, one bullet, many times, they're not the same thing.
What Justice Thomas and everybody else on that side did it said, look, you read this text, it's not ambiguous and it wasn't ambiguous in the way it went. The objection to it is that the text was clear, but the distinction was one not worth making. But if that's the case, then what's going to happen is you're going to force this back to Congress and they're going to clear it up. So it may lead in some cases to less litigation because the other scenario that you have is knowing that the Chevron trap is no longer open to you to get things true, you're going to go to Congress more often and get clearer statutes because you don't want these things to blow up. Nothing in the world is going to sort of end. What happens is there's so many responses at every stage in the production and litigation of these various cases that the adaptations will make the change a little bit less discontinuous than one might've thought.
As far as I'm concerned, I think that this is welcome because sometimes if you look at the bad cases under Chevron, they're really horrible. I mean, what's the navigable water of the United States? Well, it means an upland within 600 yards of a river. These are not English interpretations as far as I'm concerned. And so when you have a huge grab of jurisdiction under a very dubious Chevron reading, I think that completely misshapes the boundary lines between what the legislation was and what people would want it to be. And getting rid of Chevron is important. So I'll divide the world very crudely into two kinds of cases. They're really big cases where what happens matters, and for those cases, major questions type of things, you don't want to have a sort of deference that could undermine things and for small cases you don't need the deference because do it the best you can and it doesn't matter so much except perhaps to the parties which way it comes out.
So I think in effect, I'm almost certain what John said is correct that they didn't rely on Chevron in this case because they knew it was coming down the road and I think it probably suggests it's going to be a pretty much a clean break and that it will not be used in any area associated with the law. And I always thought it was a 40-year mistake in terms of the way in which it was done, even in the case in which it had started. And so I'm perfectly comfortable with demanding that judges read and that legislatures understand how to use the English language.
Tom Church: Well, let's turn from there to another case where I think we need some less ambiguity. We got some specificity and that'd be Moore versus United States. This is the foreign tax law question, and I think it's an interesting case written and cited by Kavanaugh, it was seven to two. This case has to do with foreign earnings, owning some part of a corporation and having earnings overseas. Can you be taxed on that? When can you be taxed on that? Kavanaugh showed up and said, "Listen, an entity that it's realized some earnings but hasn't distributed them can be taxed. This is the question of what is or isn't a tax."
I say ambiguity because people were waiting for this to clarify whether a wealth tax would be constitutional, whether a tax on unrealized tax gains would be allowed and the case was written keeping in mind that if this were, I don't know, written loosely, it could lead to a challenge of the constitutionality of the whole income tax system. So maybe John, I want to ask you, is this our last great chance for getting rid of all taxes and going to Donald Trump's all-tariff system or are we going to have some more specific challenges?
John Yoo: The Donald Trump all-tariff system plus tips for everyone.
Tom Church: Pro tips for everyone, that's right. No taxes on tips.
John Yoo: I'm actually going to start asking the students for tips instead of a salary.
Tom Church: There you go.
John Yoo: Just pay me directly a thousand dollars a course or whatever. I don't think actually that's affected at all by this decision. It's weird. I guess one way to put it is this might be the most important decision on the meaning of the 16th Amendment and the income tax and over a century, but it still leaves the door wide open because you didn't have five Justices I think who said anything about what is income, but you had four Justices who were pretty clear about what isn't income, and so let me explain briefly. So the case was granted, everyone thought, I mean the question presented the [inaudible 00:12:10] granted question is if for something to be income, does it need to be realized? And the idea of realization is you get a salary, you get a check, you sell stock, you realize the gain in the value of the asset.
So could the government, as the government said in oral argument, can the government though just tax you on the change in the value of your assets even if you don't sell them? So say you live in a house and the house value goes up $100,000, you're really lucky that year, then the government say can tax you on that. That would be unrealized income taxation. So Justice Thomas and Justice wrote an opinion joined by Justice Gorsuch saying quite flatly, "There has to be realization. That was the original understanding of the 16th Amendment." Justice Barrett was joined by Justice Alito and she too, those two also said, "Yes, the 16th Amendment requires realization." That's amazing actually, if you were someone who wanted to limit the taxing powers of the federal government, that's quite an achievement because that's never happened before. As far as I know, maybe I'm wrong, Richard, correct me, I don't think four Justices of the Supreme Court ever in a single case said, realization clearly is a constitutional requirement.
So the question is why do Chief Justice Roberts and Justice Kavanaugh who didn't join those four, why did they do what they did? And what they did here is they said, "Ah, we're not going to answer the constitutional question at all. Instead we're going to turn this into more of a statutory question. It's about when the government tax an entity, can it tax the entity or can it choose to tax the owners instead?" And so the traditional case of that is a partnership. When it comes to partnerships, as I understand it, this is not my area, but as I understand it, the government can tax the partners say to a law firm on the income they could have received. Now with corporations, the government generally doesn't do that. Government taxes the corporation, it doesn't tax shareholders unless it gives out the money. So that's what Kavanaugh did.
He said, "Oh no, we were wrong. This case doesn't really involve this major tax question. Instead we're really just talking about this. Can we tax the owners or tax the entity? It's up to the government." And so I think this is my read on it. My guess would be the reason they did that is because Kavanaugh and the Chief Justice want to lower the profile of the court because of next week when they have to decide whether President Trump can be prosecuted, whether all the January six protesters can be prosecuted. The political profile of the court is going to be so controversial, I have the feeling that politically they just thought this was too much to deal with this year.
On the other hand, I think they're sympathetic because if they're sympathetic because if they weren't sympathetic, if they thought the government can tax changes and assets, if they thought Elizabeth Warren's wealth tax was constitutional, then why read this thing so narrowly? Why not just join the three liberals and say, "Yeah, you can do that. The government's right." So I think ultimately this signals that the court, a majority of this originalist court will in the end establish a realization requirement, which would be I think a significant knife through the heart for all these wealth tax proposals.
Richard Epstein: I have a somewhat different view on this and these are two very different issues. The three different issues actually. The first one is what do you do with wealth that has been realized at the partnership level but not distributed and there are no valuation problems. In this particular case, they knew to the penny the amount of money that was in dispute. This is something that commonly happens with other kinds of partnerships over a very long number of years. And I think the correct answer in this particular case is to say, well, it's a nice question, how should it come out? John and I actually wrote a brief on this and we took the very modest position. There's no reason whatsoever to impose a tax when you can't get the cash, what you do is you wait till the cash is distributed and then you tax it as income.
So you don't have to put people into this modest liquidity crisis. And the answer is, well, we've been there before and we're not going to change the constitution. Even if we think that you're right on the merits, the legislature can do that, which it won't. The question about what we do on the appreciation issue and on the wealth tax, these are two very different questions. The 16th Amendment talks about taxing income without regard to census and enumeration and without regard to apportionment, but it's an income tax. And even if you take the broadest definition of income, income is essentially the change of wealth between any two points in time and that increment, plus or minus, is either the income or the loss. A wealth tax does not fall within that definition at all.
That is basically the accumulated amount that you have. And so if it turns out that you have a large amount of wealth, we don't care whether it's more than you had the last year or less than the last year, and that's going to be subject to the tax and there's no authority under the 16th Amendment to be able to do this. When we come to the other half the problem, what do we do about appreciation and so forth? The position that I take, and I think John agrees with this, is basically there are three kinds of assets that require three very different kinds of treatment. The first class that everybody agrees with, if you get cash and marketable securities, you have to pay a tax on them at the time that they received. And that the one important feature about the recession requirement is that if you were in the money and directed it be paid to your spouse, the money is treated as though it were paid to you and then a gift or a payment over under some other purposes to the spouse.
And that's called constructive realization. So as to prevent undermining the progressive tax system. That's been part of the code since 1930, series of cases called Lucas and Earl and Corliss, Lee, Bauer, I think nobody really wants to deal with that. The most important innovation of the Internal Revenue code is what are called non-recognition provisions in which you get something in which you really don't know what it is. What there is is a reorganization and you take some shares of a corporation that's not publicly traded and you don't know how to value it. So the rules that they apply there is you don't take it into income, but when you sell or liquidate the business and you have cash or cash equivalents, that's when you take it into account. And huge portions of the Internal Revenue code do that. So that realization in effect is not a sufficient condition for taxing because you want to get rid of this.
And the third thing, you'll have a really sort of financial assets for which realization makes no sense at all. These are stock options of one kind or another, derivatives, and these things have very precise values. There's no real asset that you have to liquidate underneath them, they're just financial investments. And the rule has always been you mark-to-market the entire portfolio and tax up or down on the difference, and it's easy enough to sell this stuff. You don't have to basically sell your machinery in order to get rid of this problem. So I think the correct solution is, as both a business and a legal matter, is that you never tax unrealized appreciation of stock even though you may be able to basically use the market to market rule with respect to the various kinds of options. And then the question is, is it or is it not constitutional? And the opinion that may matter the most in this case was the one by Judge Ketanji Jackson Brown who said, "I don't see no restrictions whatsoever on this."
And this had two responses. The Wall Street Journal freaked out and then the New York Times, Ron Wyden and Elizabeth Warren had a great celebration, said, "We live to fight another day." My own guess is that the most important feature is going to be one that was mentioned in the Kavanaugh opinion, and I don't think he just put it in there casually. He says, "The reason why I'm not getting rid of the realization requirement here is that we have a very long-established tradition on all of these matters and there's a presumption of constitutionality of that particular tradition. And so I'm not going to get rid of it one way, and I think the implication is I'm not going to get rid of it the other way." We've run a tax system, we managed to raise whatever revenue we need without having to go to the situation of wrecking markets with trying to tax unrealized appreciation of every asset which would increase the number of tax returns that have to be filed or assets that have to be valued by a thousandfold.
It's going to be a crazy market on how to do that. These cases can't be resolved within the year, so you're going to have one open year, then you're going to have the next open year. It takes five years to resolve an estate tax case. And this is the same kind of calculation. So I think in effect, they would actually strike this down if they were to try it. And so in the end, my guess is the Democrats will come to that conclusion reluctantly and they'll just push for very, very much higher rates on the corporate tax, the individual income tax and everything else. So I wish this case had never been brought and I wish that this whole debate had simply disappeared.
I don't care in terms of the welfare of the nation, how you resolve the particular question about unrealized wealth in the shares in a partnership interest. I really do care about the realization question. We need to have no realization requirement for financial funny stuff. We need to have it with respect to corporate stocks and other kinds of real assets. And I hope that's the place in which we end up. But Lord knows how it's going to happen, we live in strange times.
John Yoo: Let me get just two points about what Richard said, is one, I agree with him that the political outcome here is that I think it's a highly unlikely Congress would pass a wealth tax given that, I mean you could see this opinion as a brushback pitch because it makes a constitutionality of any wealth tax extremely uncertain. You have four votes against it for sure. But the second thing is I just wanted to talk about Justice Kavanaugh because I find his opinion really quite disappointing. The part that Richard liked about it is a part I found most disappointing. Kavanaugh basically says, "Well, we don't want undo the way things have gone because that would mean that the government might have to raise taxes because all kinds of sources of taxation we'll dry up for the government." Well, that's not his job. He's not supposed to interpret the Constitution based on whether you think it's going to cost the government a lot of money. I'm actually a little surprised Richard says that. I mean Richard is the great libertarian.
Richard Epstein: I didn't say it for that reason, I've just said it to say it.
John Yoo: One of the libertarian constitution is that it's there to preserve individual rights and I would say he should just get the 16th Amendment right regardless of the consequences on the tax base for the federal government. And if it ends up drying up a lot of income taxation for government, then tough, then go ahead and have a vote on raising the rates on the things we know are income. So I actually really disliked this opinion by Justice Kavanaugh, I found it extremely disappointing, and then we will talk about it in a minute, but he went on this big chest beating exercise in the Second Amendment case we'll talk about where he made out to be quite the originalist.
Well, when actually he had to do it for a living, he couldn't do it. He was not willing to live with the consequences of being the originals he pretends to be in the Second Amendment case. So I'm putting aside that Richard and I wrote this brief and maybe we have some steak. I'm just saying if you look at Justice Kavanaugh's jurisprudence, he makes a big show or claim of being an originalist, but he does not follow through on all his talk.
Tom Church: Richard, do you agree?
Richard Epstein: No, let me put it this way. I agree with John that it's not the business of the court when you get the right interpretation to say I can't follow because of the revenue implications. I was not making that point. I was making a point that I thought the right interpretation of the 14th Amendment was to recognize, rather of the 16th Amendment, was to recognize this very powerful distinction between commercial business assets where the disruption is enormous in mark-to-market cases where it turns out it's salutary. And so I think that's just the correct rule. Now, one of the things you note is you mark-to-market, there could be a down year as well as an up year. In fact, one of the problems that's going to happen if they ever decide to put into place God protected the untaxed on unrealization of [inaudible 00:25:06] corporate stock and so forth, 1922, everything went down by 20%, right?
Are you going to give a huge refund from this stuff or whatever it is? The problem that you have, and it's not just a technical problem, it's a constitutional problem, is the unrealized appreciation tax with respect to these assets creates a lot more volatility in the market than you're going to have under the other kind of system. And what that does is in effect, it reduces the total value of the stock of all the wealth in the United States. Well, if you have a change in the legal rules in which everybody loses and nobody wins, this taxes are taking from everybody and nobody gets compensated, so it's kind of unconstitutional. That's not the case when you start looking at basically the financial assets, everybody in the business regards this as a very useful form of stabilization that gets rid of sort of technical problems. So I mean the text is very unclear about all this.
John and I, when we wrote our brief, the one thing we said is, which is clearly right, is that if you start looking at the debates over Pollock against Farmers' Loan, they did not once address the question of what's going to happen with respect to realization and that you can't read in the rejection of Pollock and [inaudible 00:26:20] the notion that somehow or there's no realization requirement for any or all kinds of assets. It turns out I think the right rule is that wealth tax is simply out of play. I think that the appreciation on funny property like the various options should be perfectly legitimate and I think the rest of it should be essentially constitutionally unpermitted. So I think that that distinction really matters and it not referenced in the opinions of Justice Thomas and so forth.
And so I get a little bit nervous about this and the reason I get unhappy is if I see a system that's relatively stable, wholly apart from my constitutionalism, and then I see a series of decisions which threaten to destabilize it in all sorts of ways, I think the uncertainty that's introduced is a huge downplay and it will impact the real wealth of ordinary individuals and the way in which people start to enter into various kinds of market transactions. So I would dearly love to see a Congress come through and basically amend the Constitution, not the Constitution, or make it very, very clear that we're not going to tax the unrealized depreciation in the way in which the Biden team wants it to be done. This I regard is an unmitigated disaster.
Tom Church: All right, so more was decided seven-two, let's go a little bit more agreement here. The Second Amendment case, John, that you mentioned, United States versus Rahimi, eight-one, what am I missing here? Thomas dissented. It basically upheld that a person who's had a domestic violence restraining order can't have a firearm. I mean that to me seems like one of those things that I think, "Oh, that seems reasonable." And then I have to think about the constitutionality of it. Is there more to it than that?
John Yoo: Yes, I think so. And it's actually representative of a fight that's going to occur between originalists going forward. It's called, well first of all, second of all, second of all, the nice thing about this, and I think this is something that started about three years ago, is that all the action here, and it just is reflected, we're talking about just now in the 16th Amendment case, is just about originalists fighting with each other. It's so satisfying.
Tom Church: John, is that a consequence of the 333 court? Is that what you're getting at here?
John Yoo: But all the big interpretive fights and the questions how these cases are decided, we're not talking anymore about interpreting the permutations of the emanations of the penumbras of what five Justices think emerge from the liberty clause of the 14th Amendment anymore. So that part is refreshing. And so this is another example. This is actually a fight amongst originalists. This case is much more interesting than the result because you have opinions say by Kavanaugh, by Barrett, by Thomas Gorsuch about how to properly do originalism. So if I could just try to, how do I say it, but narrow it or sum it up in a very short brief way, you could say the whole fight is about level of generality. And the way you could think of it is this, okay, so everyone agrees actually amongst the conservatives that you should interpret the Second Amendment based on the understanding held by its ratifiers in 1791.
And then as applied to the states, you would also consult with the founders, sorry, the ratifiers of the 14th Amendment thought. And so how do you do that? Do you say, "I will only uphold regulations on guns now that are the same as regulations on guns then?" Or do you say, "I want to uphold regulations at guns now that follow the same principle, our analogous at a very broad level of generality to those then." So to give you an example from Dobbs, you could say in Dobbs, Justice Alito said, "Okay, there's nothing in the 14th Amendment that seems to guarantee a right to abortion." And they said, "I want to see laws in 1868 when the 14th Amendment was ratified that create a right to an abortion. If I don't see those that to me," Justice Alito says "Shows that the originalist understanding doesn't include it."
That's what we call very low level of generality. Now, critics of that decision, you say, "No, no, you made a mistake. What you should do is say, the level of generality is, did the 14th Amendment create a right of equality?" And that's what you ask, is this infringed some right of equality? So that you could say that's basically the rule, what happened here. Justice Thomas says, "I want to see laws in 1791 and 1868 that are very similar to this law taking gun away from someone who's under a domestic violence order who has not been convicted of a crime." And Chief Justice Roberts says, "No, no, what's really important is the principle behind the regulation." And he says, "The principle was, could the government take guns away from people who threaten the safety of the public?"
And Robert says, "Yeah, that's the level, at that broad level of generality, the government's allowed to restrict firearms." So that's the real fight amongst all the Justices now, is how narrowly versus broadly do you state the kind of principle or purpose or the actual fact of regulation back when the constitution was ratified. Now, but the good thing is they're sticking to what they think the original understanding was, and they're not saying this is what I think is the best way to regulate guns.
Richard Epstein: Well, I'm going to tell you what I think. Let me say this. I think that John is right to say that the level of generality is going to be critical, but you have to figure out in all cases which level you want. And the single most general principle that I would do is one that was not articulated by John about, which I think has been in the American constitutional condition since it's the very latest, the 1820. And that's the standard view of what counts as the police power. And it's a pretty uniform tradition. And what it does is it says that the state generally has notwithstanding specific rights that are protected by the constitution, a right to regulate, to protect the health, safety, morals, and general welfare of the population. And I'm going to sort of stick to the first two, the health and safety. And so you go back to the time of Lochner against New York, it wasn't that they repudiated that distinction, quite the opposite.
They said, "The reason why we do not allow you to put into place a ten-hour workday and a sixty-hour work week is that these are anti-competitive stuff, very weakly related if at all to health and safety." And so what they did is they said there are some pure cases and there's some not so pure cases when it came to workman's compensation laws, which were much more clearly safety laws. Justice Pitney, who was a constitutional preservative said, "Look, I understand where these things come from and they're fine." So when I hear somebody saying that they're two levels with abortion and one of them is a majestic principle of equality, I regard that as just the most irresponsible kind of argument that you could possibly make because in fact, equality could be everybody has an abortion and nobody can have abortion amongst women who are eligible for it.
And so I think in effect that to go to that level of generality means that you're completely abandoning any serious kinds of constitutional discourse. There were of course many laws on the books at that time which prohibited abortion, and there was a vast tradition of common law adjudication on criminality, which had exactly the same position. So I don't think it was even close that they regarded the abortion statutes as where it was. It's also clear that they had a normative theory regarding essentially the fetus as being some kind of a protected interest from conception and not waiting for the trimesters or anything else. Now, when you start looking at some of these cases or other cases, what happened about this one? Well, I don't think this is a hard case, to my mind is that the state always had the power to remove firearms from people if there were danger of causing somebody harm.
They may not have done it in the connection with domestic violence for whatever reason. But I don't see this as being a particular extension. So I think the decision to basically say that these regulations are appropriate is correct. It's also, if you start going back to [inaudible 00:34:53] Justice Scalia had a lot of trouble figuring out what he was doing with this decision, but when he got rid of the notion about the militia, he said, "Look, I mean the right to keep and bear arms has to be subject to some kind of general peace power limitation. And I think that is also correct. And if it's correct, then I think the ones that they imposed on this particular case are appropriate as well." And so this case strikes me as being fine. It's also eminently distinguishable from the Bruhn case where somebody is saying you can't take a gun outside because we think that you're going to use it wrongly in some particular way and that you have to show that you're faced with imminent peril before you can basically have a weapon to protect yourself.
I don't see anything in any of the levels of interpretation that makes that remotely plausible. And so I think in effect that that case was also correct. And so I mean it is drawing lines, but when you do this, it's not just a question of asking about levels of generality. I think it has to be against a more nuanced background, which sort of indicates from the beginning of time in the constitution all the claims with respect to specific protections were always subject to some kind of potential police power litigation. We know what its basic contours were, and that's the kind of thing that you want to use as your standard for testing on this issue. And the extent that you go beyond that as they want to do in an abortion case, talking about legality and so forth, or equality, I think they're mistaken. So I think the decision in this case was correct.
John Yoo: So here's the problem though, is that if you express the level of generality as broadly as Chief Justice Roberts did, does it effectively put you back in the war in court world where it's just up to the courts to decide, "Oh, we think this is a good idea or bad idea." So for example, if Robert says the government's allowed to limit or even take away, prohibit you from having a gun, if you present some threat to the public safety, that's how broadly he drew it from Blackstone saying that you could restrict possession of firearms to people who I think the phrase is threaten the King's peace.
Richard Epstein: Yeah, Contra Paca [inaudible 00:37:07].
John Yoo: So suppose a state were to say anybody who has more than two speeding tickets is no longer allowed to have a gun or somebody who's convicted of a DUI is no longer. So the problem is, is a court going to be intrusive on what state's claim as a threat to the public safety? I mean in the area that Richard really was the pioneer, which was originally, no offense, Richard, I mean this is how you first came to a lot of people's public consciousnesses. Of course you've made other achievements in a great many areas, which we have no time to discuss, but was when Senator Biden was waving around Richard's buck, taking and threatening various Supreme Court nominees with it. And what point Richard makes there is that the government is always going to claim, "Oh, we have to restrict property rights because it's for the public good that we take people's property and turn it into an industrial park or something." This concept of-
Richard Epstein: No, that's the public use for that.
John Yoo: ... what is the public harm is going to be so elastic that either courts will not stop it at all or they're going to use as an excuse for the courts to judge really what's for the public health and safety. That's what I'm really worried about.
Richard Epstein: Well, you see what that means that you want me to be all nine votes on the Supreme Court. The position that I've taken from the beginning was that when you're starting to use the definition of harm, what you did is you started to use it as understood in the classical liberal tradition, which is the use of threat of force as the dominant feature and then as a subtext monopoly in certain kinds of cases. We kept to that reasonably well and so a case like Lochner never [inaudible 00:38:58] the formula, but what it did is it said when it had a ten-hour statute, you didn't know whether it was an anti-competitive statute for the benefit of unionized workers or you're trying to protect people from various kinds of health exposures of one kind or another. And any test that you put together, whether originalist and non-originalist is going to have these borderline cases.
But the position that I would make, if you went back and looked at the pre 1937 cases in which they use the word police power, the word police had a very close connection to police force and to force. And when they start moving it into the modern domain and you start talking about compelling state interest, that's where everything starts to go over the top. So there is no compelling state interest within the traditional views of the police power to have income redistributions from one group to another. That is simply something which is a modern sort of welfare constitutional situation, then it's completely foreign. There is no [inaudible 00:39:55] whatsoever to create equality of bargaining power by shutting down competitive markets and labor and transportation and everything else and replacing them with government cartels. And that's the position that I took. And the reason why people were so appalled with my takings book is that it actually took the police power line as it was traditionally done, and showed that there were really sharp limits as to how it went.
And so in Adair and in Combwich and Kansas, they said collective bargaining is not when the legitimate function of the police power, which was exactly the right kind of decision. So I don't fear that. And I think it's important, John, to make this distinction. Even if you give the perfect test, they're always going to be joint cases and ambiguities. What you want to do is to have the ambiguities in the right case and the modern definition of a compelling state interest, which completely gets rid of all the references to force and fraud is not the correct way in which to approach this stuff. And so if we go back to the other things, we have to live with ambiguity as an originalist, as anything else. What we want to do is to make sure that the ambiguities are in the right kind of place. And if you look at the pre 1937 cases, there are very few of them that are crazy.
In fact, they get some of the really nice issues having to do with bankruptcy and the collective action problem and bank legislation of one kind or another. And you go through those cases and what you do is you come up with a really amazing sense, here's a bunch of guys and somehow either by hook or crook when you read what they did, it's a hell of a lot better and a hell of a lot smarter than what we're doing today. And all the wisdom that we have accumulated in political theory in the last 100 years seems to have turned south and made the Constitution a wishy-washy kind of doctrine. And I'm not in favor of all that, whether this counts as originalism or not, I can't say, I come much more out of the Roman tradition than just John. And the Roman tradition says every major doctrine has something known as the Allgemeine Teil, the German vision, the general part.
So if you see a statute and it's just categorical, you know that it has an exception for fraud, you know it has an exception for coercion, you'll know it has an exception for infancy, you know it has a weak monopoly exception. And you read those things into the statute, not because of a legislative history, but because of the basic structure of common law. And I wrote this long paper that John now has to read called The Natural Law Origins of Public and Private Law, which goes through how this tradition worked in domestic and international law and how it produced an amazing amount of stability over a very long period of time. And so that's how I would treat this, and I would treat it less as a matter of intention of the Federalist guys and more in attention of figuring out rather of the founders and more attention to the basic structures that have adhered in the basic law since Roman war times. And I don't mean this as a joke, and in fact the area where it works the best is riparian rights.
John Yoo: Newsflash, the Empire fell in 476.
Richard Epstein: That empire, but Justinian was written in 531 or two. And so it survived as a legal doctrine 74, many years after the fell back.
John Yoo: Can I just say, Richard's point is interesting, and maybe we should have a show on it over the summer when there's not a lot going on. But there is this, I detect it's not just from Richard, there is a revival going on of interest in Roman law in the constitutional law area. This is being prompted by Adrian Vermeule and his argument in favor of-
Richard Epstein: Don't talk about that
John Yoo: ... common good constitutionalism, Richard has been beating the drum for more reliance on government law.
Tom Church: [inaudible 00:43:35] is the revival because Richard's students are everywhere out through the law right now?
Richard Epstein: Well, I mean, look, I have enough students [inaudible 00:43:43] here, there in the other place. They're not on the Supreme Court yet, but I hope that some of them will do this. Look, Adrian is a very different beast. He basically refers to one single phrase in the Digest, an important phrase around keeping your promises, doing justice and not inflicting harm on other individuals. But if you actually go through the actual text, what does it mean to inflict harm on somebody? If you don't understand the classical distinctions between actionable harm on the one hand and [inaudible 00:44:12] in your area, the whole system starts to fall apart. So you not only have to know the general rules, you have to know the sub-rules as they start to develop within that system, which is why I spent 90 pages trying to set them all out. And John is now duty bound to read it.
John Yoo: No, no. I have a classical Latin education, so I am sure, I think it would be interesting to talk about, I'm not sure how much Roman law should influence a common law country like our own, but I think it'd be worth another episode.
Tom Church: I think those are fighting works, John.
John Yoo: No, I'm not persuaded. I'm a great admirer of the Roman Empire and basically anti-imperial, except if it's the United States in charge.
Richard Epstein: Okay, yeah, I'm with that on the [inaudible 00:44:59]. Let me say about the incorporation of Roman law.
John Yoo: No, no, no. That's what the other episode's going to be about. [inaudible 00:45:05]
Richard Epstein: Yeah, but there are many cases where it's quite explicit and other cases where it's a reach. And if we had more time on the next show, I could explain to you which things resisted incorporation, which did not.
Tom Church: I'm going to leave that to Troy when he comes back. All right, let's do [inaudible 00:45:22]
John Yoo: I think staying up all hours feeding, screaming babies would be adequate preparation for listening to Richard explain this.
Richard Epstein: Says John who has no children, right?
Tom Church: Exactly. Exactly. All right, how about a quick lightning round here because coming up on the end of time, and there's a couple of things I want to ask you about. So one, really quickly, FDA versus Alliance for Hippocratic medicine, this is the Mifepristone case, the so-called abortion pill. Supreme Court denied the challenge to the FDA approval based on standing. So my real question very quickly is, is there an avenue for banning these abortion pills at the federal level or in a post Roe v. Wade world, is it always going to be a state issue?
John Yoo: Oh, I think both.
Richard Epstein: It's certainly open.
John Yoo: Oh, sorry.
Richard Epstein: John is right.
John Yoo: Oh, both. Yeah. So this case says there's no standing, which I think was the right outcome here, but certainly Congress could ban the Mifepristone. I think President Trump could reverse a regulation, but whether it's deemed safe or not by the FDA doesn't mean you can use it for murder. If that's what a state wants to decide, the government can say this is a knife and we approve this knife. That doesn't mean that you get to use a knife to kill people if a state thinks that that's murder. So states, I think still have lots, a great deal of discretion. And then at the federal, there's this other wrinkle, there's something called the Comstock Act, which if you read the text of it seems to prohibit using the males to mail things that could help cause abortions. And so that's lurking out there too.
Richard Epstein: Yeah, look, I think there are very few cases where I think standing is an appropriate objection, but this is one of the cases where I think it makes perfectly good sense. I mean, there was no particular issue of any doctor who was objecting to the situation of having to paste impediments on his or her practice. And so the case would be completely different if what you did is you had a Biden order generalization, which says if you're a conscientious anti-abortion doctor, a Christian Catholic and so forth, you must prescribe this drug. Then I think it's an obvious standing issue, but it's not about the ban, it's about forcing people into doing this. The Biden administration has a very, very broad definition of volunteerism, which covers all sorts of terribly coercive action. But I think in those cases they would be standing. But I think John was right on pretty much everything else. It's a rare occasion when it happens, but it's most welcome when it does.
Tom Church: I'll note this case was decided unanimously, right?
Richard Epstein: And rightly so.
Tom Church: And rightly so. All right, really quickly, Justice Thomas has been getting some flak for some newly undisclosed trips, paid for trips by outside donors. Is there any heat here? Is there any fire here? Has he done anything wrong? There have been some people who said, "Hey, he should recuse himself of cases, he should step down. They should try and impeach and get rid of him." What's actually happened here?
Richard Epstein: I'll let John answer that because you work for Thomas, right?
John Yoo: As I understand the rules, he's not done anything illegal. In fact, he's disclosing things which he was not obligated to disclose under the rules as they were before. The court just changed its rules on what it has to disclose or not, what Justices have to disclose or not.
Tom Church: Oh, I see. Okay.
John Yoo: Yeah. So my understanding is if you were receiving hospitality from friends, real genuine friends, like you're staying over at their house, you didn't have to report that, but the court just changed that. So I think what he did is he went back and revised his reports to be compliant with the new rule, even though I don't think you have to do that. But I think here's the bigger question is this doesn't matter in terms of actual performance of your job as a justice, unless his friend who's just Harlan Crow a very wealthy and successful real estate developer in Texas, unless he had some cases before the court. And that's the thing, I mean, there's no showing that Harlan Crow's had any business before the court or that Justice Thomas sat on it. And so that's really the important thing about recusing yourself. Is it a case where someone's sitting on a case where they really can't be objective and impartial, and I can't see that being the case here.
Richard Epstein: I'll give you an illustration where I think recusal might have been in order. Elena Kagan was one of the people who helped prepare the Affordable Care Act, and she was one of the Justices who passed on it. I think that's a much more serious conflict. And then there's also, what do you do if your name is Thurgood Marshall and you are the greatest lawyer of your generation on civil rights cases by far, you get on the Supreme Court. Do you have to now remove yourself from all cases having to do with race relations because you argued them for the past 30 years? I think that's crazy. And what he did was the right thing. He said, "I'm taking two years off and then I'm going to [inaudible 00:50:14] like everybody else." Because on the Supreme Court, there are no ways that you could get bench hitters coming up there.
And so it's absolutely critical that you have a duty to get nine people there when you can. So I think recusal by, say Justice Juan Merchan would've been much more appropriate because his daughter was clearly involved and there were other judges who could take that case over, so he did not have to do it. And then make the whole thing look one of dubious originality. So where you are in the system, how long you do it, these are complicated matters, but this doesn't come there. And what there is a ongoing vendetta against him and Justice Alito trying to find small things by which they could force them out of cases. And I think that is much more dangerous than anything else.
I do not think that we ought to say to the Democratic judges, well, we know you are anti-Trump because you said so, Ruth Ginsburg and others perhaps. So what we're going to do is force you to sit down and then we have eight judges are required and one person has to decide the case. No, you don't want that. And I think that John is absolutely right, and I think the constant efforts to undermine the integrity of very honorable people is a very dangerous thing to do. And I would be appalled if it turned out that conservatives started to play tit-for-tat on this issue, which I think would lead to a real disaster.
Tom Church: Last one for you guys here, Project 2025 is this group that's looking forward. They're hoping for a future president Trump times two, second administration and trying to set up agendas, political agendas, vetting candidates, and it's causing some consternation, a lot of consternation for people on the left, for some of the statements that have been out there by Project 2025. Things like firing non-political federal employees and putting in Trump people, not just the regular appointments. My question to you is many people look at that and think, okay, that's the threat to democracy they see on their side, in the next year, what are you worried about in terms of the institution that we have? We've got 2024 coming up, we've got former President Trump again warning that if he doesn't win, it's probably stolen. What do you think is an actual threat to democracy within the next year?
Richard Epstein: Well, I lost my case when Biden fired everybody from these various advisory boards, and I thought that was a serious threat to democracy. I think his abuse of forgiveness with respect to student loans is a serious threat with respect to democracy. I think the endless prosecutions of which there were no Trump parallel of people who somehow are in the administration, they get investigated in check. I think it was a political thing. You worry about trying to write off the Hunter Biden stuff as being disinformation, which was, I think wrong. And so my view is that this issue has two sides to it, and Trump says stupid things, but I think Biden does dangerous things.
Tom Church: John?
John Yoo: I agree with Richard on the use of criminal prosecution to try to knock out the leading candidate for the presidency of the opposition party or to punish presidents after they leave office. But I think it's odd actually, to hear people say, "We have to defend democracy by increasing the unaccountability of the civil service." Doesn't make sense to me. If you were really pro-democracy and you wanted majoritarianism, you would support actually greater political control over the civil service, which is I think what this project 2025 thing is best known for right now. I've looked into it a little bit and from what I've seen from Project 2025 is the Heritage Foundation's recommendation of policies to a new president, but it's not endorsed or run by the Trump campaign. So you have no idea, I think, what Trump's going to do when he gets into office, you could always totally see him doing exact opposite of what everyone tells him to do. That seems to be his MO. So I think people are really overblowing with Project 2025, but also all these stories that you're seeing about what Trump's going to do, should he win.
Richard Epstein: Yeah, I mean, I remember a statement about Trump four years ago, which I thought in retrospect had a lot of situation. It ran something like this. Those people who support Donald Trump take him seriously, but not literally. And those people opposed Donald Trump take him literally, but not seriously. And I think the first approach is better. If this man could only learn to shut his mouth, if his supporters can only learn to do this. If you look for who is basically abusing the criminal process, it's not even close or even the use of executive orders. Much more danger with respect to Biden, I spend large portions of my life writing about various things that the administration starts to do under Biden, which I think are extremely unwise and often extremely unconstitutional or beyond the scope of executive authorities.
I'll just give you one Epstein principle. I do not think you should set through substantive mandates on any major areas like say electronic vehicles through an executive order. I think executive orders, once they extend past the term of office, should be confined to procedural questions about how it is that you clarify and organize the system, and it should not be put on forward because the next administration comes in and they take it all out again as they can do. It leads to massive instability in the law, which is why you want Congress to do these things in the first place. John, do you agree?
John Yoo: I mean, I don't know. I don't know about executive orders expiring at the presidency, although presidents can always do that just on their own when they come into office.
Richard Epstein: I know. But I think basically banning electronic vehicles is something like that by 2035, is zero admissions by 2050, I mean, it's hubris to assume that what's going on.
John Yoo: Yeah. I think what is the court's major question doctrine has essentially done this for you because now you can't issue executive orders on things like that because the court will say, that should have been up to Congress. It's really the non-delegation doctrine and in a different habit.
Richard Epstein: Yeah, I agree and it's most welcome and if you finish the job by getting it right with respect to relentless and [inaudible 00:56:51] it will be a different and a better world. But we've already been over that. So maybe it's time now to end, Tom.
Tom Church: I think so.
Richard Epstein: But we still love you, Tom.
Tom Church: I appreciate that. Well, let's call it there for this episode of Law Talk with Richard Epstein and John Yoo, who I hope you will take both literally and seriously. If you found this conversation thought-provoking, please share it with your friends. Rate this show on Apple Podcasts, Spotify, wherever you're tuning in so other people can find it. For Richard Epstein and John Yoo, I'm Tom Church. We'll talk to you next time.
Richard Epstein: Great.
Speaker 4: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work or to listen to more of our podcasts or watch our videos, please visit Hoover.org.
